Mr. Stringer: I can be of no further help to the hon. Gentleman, but I will make one last effort to persuade him that his amendment would reduce the Bill's effectiveness. We would be almost back to the 1994 Act, under which it was very difficult to achieve the objectives that we share.

Mr. Page: I beg to move amendment No. 13, in page 3, line 20, at end insert

`or

(c) in the case of a new criminal offence which replaces an existing offence, with any fine or sentence greater than the maximum which could have been imposed for the existing offence'.

I am aware that the title of clause 3 is ``Limitations on order-making power''. The amendment was tabled because it would constitute a limitation on that power. As was mentioned this morning, Opposition Members are worried about how a Bill as powerful as this might be used by Ministers and Departments. I am more generous than my hon. Friend the Member for South Cambridgeshire, who expressed a specific worry about the Labour Government. That is perfectly reasonable and understandable, but I will add that, in extreme and rather unlikely circumstances, the measure might even be used by a Conservative Government. I would not want to see the Bill used in such a way even by our party, although in our case that would happen inadvertently rather than by design. I do not see why we should add to the legislation process in that way. It is inappropriate for the order-making powers to be in the hands of Ministers as a result of secondary legislation to increase the maximum sentence provided for in an existing statute.

If the new offence created by the Bill merely replaces an existing offence and where that offence is punishable by a maximum penalty less severe than those referred to in subsections (2)(a) and (b)for example, where no punishment of imprisonment is available under existing lawit would be wrong to use the power to enable the maximum sentence to be increased. I repeat that the powers should not be used, deliberately or inadvertently, to increase sentences for existing offences.

I am glad that the hon. Member for Weston-super-Mare (Mr. Cotter) is here, because I want to draw to his attention the fact that the amendment is almost identical to one that was moved by the noble Lord Goodhart in the other place on 23 January. It has, however, been honed to greater perfection than was the case when it was in the House of Lords.

Mr. Cotter: At the end of the day, Lord Goodhart considered that the amendment was not practical.

Mr. Page: I was not going to draw to the Committee's attention the failings of Lord Goodhart in tabling an amendment that was not practical. That is why I said, as carefully and kindly as I could, that this amendment had been honed to a greater pitch of perfection.

Mr. Cotter: That honing is purely a matter of opinion, which is somewhat subjective.

Mr. Page: That is a poor recovery, but I suppose that it is the best that the hon. Gentleman can do in difficult circumstances.

I can almost summarise the arguments that the Government will advance. They will say that the Bill can achieve large-scale reforms. We have already expressed our concern at the scale of the Bill's reforms, and stressed the need for safeguards. The reforms will mean the sweeping aside, by order, of much existing legislation.

I pray in aid once again the fire safety regulations, which will entail getting rid of many criminal offences. The new offences that could be created might be difficult to compare with old offences, and some technically criminal offences will be replaced by criminal sanctions. Existing safeguards provide that no new criminal offence can, on indictment, be punishable by more than a two-year prison term and, on summary conviction, by no more than a level 5 fine or six months' imprisonment.

5.30 pm

I hope that the Minister will not propose all those arguments, which I have plucked and pulled from replies in the other place. I must draw to his attention, however, that large-scale reforms in respect of major aspects of criminal justice should be carried through not by secondary but by primary, legislation. As the Committee knows, there are more criminal justice Bills and Acts than we can shake a stick at. It should not be too difficult to produce something to tie in with the intentions behind this measure.

The Bill's procedures for dealing with a new streamlined risk-based approach to counter some novel forms of mischief might lead to neither House responding positively to the document produced under clause 6 simply because the changes are viewed as too complex. I remind the Minister that examination of criminal penalties in parts of our legislation should be done other than through secondary legislation. If not, a distinct limit should be placed on what can be done, which the amendment is designed to achieve. The amendment would provide important safeguards for the individual and I hope that the Minister will accept it.

Mr. Lansley: I support my hon. Friend the Member for South-West Hertfordshire (Mr. Page), who has presented a positive case for amendment No. 13, but I want to ask a question. The provisions of section 2 subsections (1) and (2) of the Deregulation and Contracting Out Act 1994 seem precisely the same as clause 3 subsections (3) and (4) of the Bill. However, section 2(3) of the Deregulation and Contracting Out Act goes on to provide that if a new offence is created, replacing an existing offence where the maximum penalty is greater than the standard scale set out in subsection (1), the maximum penalty should not be greater than that of the offence that is abolished. That is almost but not quite the same as our proposals. We have applied the same principle, but more widely.

If the Minister will not respond positively to my hon. Friend's arguments, will he explainthe explanatory notes, admirable as they are, do notwhy similar provisions to section 3(2) of the original Act were omitted from the Bill?

Mr. Stringer: The hon. Member for South Cambridgeshire is right that the drafting was taken, word for word, from the 1994 Act. I understand hon. Members' motivation and the introduction of new criminal offences is a serious matter. I suspect that if they examine what the amendment could mean in practice, they may be less happy with it. If a wide regime of penalties is replaced with one or two penalties from a series ranging from five years' imprisonment to six months' imprisonment or a fine, the amendment would open a gateway that could impose five-year sentences for offences that most reasonable people would think did not justify such a sentence. We took the two-year penalty from the DCOA, but the other penalties in that Act were not transferred to the Bill. I could read out the note providing me with advice, but it might be easier if I write to the hon. Gentlemen. I hope that I have explained that the amendment would open a gateway allowing five-year sentences to be imposed for offences that do not merit such sentences.

Mr. Lansley: The Minister is perhaps being too harsh because the purpose of the amendment is to introduce a penalty for a new offence that replaces an offence that has been abolished. Clearly, it would not be appropriate for that to be an open door to the imposition of punishment in excess of the standard scale. It would apply when one offence is replaced by another. The purpose of the amendment is not to open the door to harsher penalties, but to limit the potential of the order-making power to impose harsh penalties where they do not now exist.

Mr. Stringer: I trust the hon. Gentleman's intention, but if existing offences, of which there are many, are changed, how can we relate those offences to what is proposed in the regulatory reform orders? That is in the nature of changing whole regulatory regimes and is why the hon. Gentleman would create a gateway.

Having had time to read the advice that I have received, I acknowledge the hon. Gentleman's point, but under his amendment a seven-year penalty could be imposed. We decided that no regulation offence justifies such a penalty. If it did, it should be covered by primary legislation.

Mr. Page: I heard what the Minister said and I confess that I am slightly concerned that he believes that this simple amendment, which is easy to understand, would open the gateway to longer sentences. He bids up the process each time he mentions it, ending up by saying that it would open the gateway to seven-year sentences. I should hate him to go further, because he might say that it opens the gateway to a nine-year penalty. Having heard what he said, I should welcome a written explanation of his argument in a slightly calmer and more formal response. If we are satisfied, that will be fine, but if not, we may return to the matter on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 ordered to stand part of the Bill.

Clause 4

Statutory instrument procedure

Question proposed, That the clause stand part of the Bill.

Mr. Lansley: I am sorry to cause delay over clause 4, because there was a considerable amount of debate on it in another place, largely relating to the proper scrutiny of the subordinate provisions order. It is proper to recognise that the Government have made changes that will make it easier for the subordinate provisions order to be passed in the form determined by the originating orderwhether affirmative or negative. Those changes are helpful.

I have one small question. Subsection (7) states that subsection (2), which refers to orders being laid before, and approved by a resolution of, each House,

``does not apply to a subordinate provisions order, if

(a) it is not made by a Minister of the Crown''.

Does that mean the National Assembly for Wales acting alone, without a Minister of the Crown, or does it refer to somebody else, or other circumstances of which I am unaware?